Guests

David Cole
law professor at Georgetown University Law Center and author of "The Torture Memos: Rationalizing the Unthinkable." His previous books include "Less Safe, Less Free" and "Terrorism and the Constitution."

Transcript

10:06:56

MS. DIANE REHMThanks for joining us. I'm Diane Rehm. Google reports that government agencies made nearly 8,000 requests for user information in the first half of this year. Today in the Senate, lawmakers consider a bill that would require warrants for all electronic data searches. Joining me in the studio to talk about privacy rights and government access to online messages: David Cole of Georgetown University Law School, Scott Fredericksen of Foley & Lardner, and, joining us by phone from Oakland, Calif., Michelle Quinn of Politico.

10:07:39

MS. DIANE REHMI know many of you will want to weigh in on this subject. Do join us, 800-433-8850. Send us an email to drshow@wamu.org. Follow us on Facebook or Twitter. Good morning, everybody. Welcome.

10:07:58

MR. SCOTT FREDERICKSENGood morning, Diane.

10:07:59

MS. MICHELLE QUINNGood morning.

10:07:59

PROF. DAVID COLEGood morning, Diane.

10:08:00

REHMGood to have you all with us. Michelle Quinn, let me start with you. Talk about how prevalent government searches of electronic data have become in recent years. I mentioned the figure 8,000. There may be even more than that.

10:08:21

QUINNThat's a really great point. We know, because Google tells us, that in the first half of this year, there were 8,000 U.S. government requests for Google-related user data. But Google is one of many services out there. We don't know a lot about most anybody else. Google provides a service twice a year. And what we know is that number is up 20-some percent from the previous year. So whatever is going on, it's increasing, at least from Google's point of view, and I would suspect from other services as well.

10:08:55

REHMAnd, David Cole, today in the U.S. Senate, there is going to be debate about the electronic communications. Tell us about the Privacy Act, what it's all about and why the Senate's talking about it today.

10:09:15

COLESure. Well, the Electronic Communications Privacy Act is what's at issue, and Sen. Leahy has proposed amending it, essentially to bring it up to date to ensure that the law that protects our privacy is kept up to date with the technology that increasingly threatens our privacy.

10:09:33

COLEAnd so this law was enacted in 1986 and was designed to protect stored communications, electronic communications in the same way that, say, a personal letter would be protected. That is, if the government wants to get it, they can get it, but they have to have probable cause and a warrant in order to get it. But it made -- when it was initially enacted in 1986, Gmail was, you know, didn't exist. Email hardly existed, and people didn't have very much storage capacity. So they would tend to delete their emails.

10:10:06

COLEAnd so this law made a distinction between those emails that were six months -- less than six months old and those that were more than six months old and said for any email that's more than six months old, the government doesn't have to get a warrant, whereas for more recent emails, the government does have to get a warrant. That just doesn't -- that distinction doesn't make any sense.

10:10:28

COLEIt -- I don't know if it made any sense then. It certainly doesn't make any sense today when people keep their emails indefinitely because we have this apparently infinite storage capacity in the cloud. So what this says is we're going to treat all documents, personal documents, whether they're in your house or whether they're in the cloud stored on Google Docs or whether they're in your email account, the same. The government can only get access to them if it has a good basis for doing so, goes to a judge, shows it has probable cause and gets a warrant.

10:11:01

REHMNow, wasn't there some question as to whether Sen. Leahy had somewhat backed off in terms of what he was actually proposing?

10:11:16

COLEThere was a report in cnet.com. A Web-based journalist reported that they're -- they were considering creating a kind of out for a variety of civil law enforcement agencies to get access to this information without going to a judge and showing a probable cause. But Sen. Leahy has absolutely rejected that, and the amended bill, as it is being considered by the committee at this moment -- the hearing opened at 10 a.m. -- does not have any such exception.

10:11:59

REHMScott Fredericksen, explain to us how the government goes about getting a warrant.

10:12:08

FREDERICKSENWell, to get access to the content of the email, the -- under the present statute where email is less than six months old -- and again, it's a distinction that makes no sense today, none at all -- it's a dinosaur of a statute. But to get access to content, the government has to get a search warrant signed by a federal judge, which requires a higher standard of showing of probable cause which, in the criminal process, is a fairly high standard. It requires specific, articulable facts that -- signed off by affidavit, by an agent, a prosecutor.

10:12:52

FREDERICKSENThey go to a judge. The judge has to read this and perhaps question the agent. In the end, it -- a judge has to able to make an independent decision based on facts that allow him to do so that there is probable cause. He signs an order. The order is specific as to exactly what the government can go get. It's not open-ended. That's completely inappropriate. It's specific as what you can get, when you can get it, where you can get it and how long you can get it and when this order -- the warrant expires.

10:13:21

FREDERICKSENAnd that's what the government has to do to get content, if you will. The law is a little different, of course. The government can get non-content identifying information from providers, say, such as when an account was used, addressees, location, and that -- they can get that without a search warrant.

10:13:43

REHMWithout a warrant. And tell me why law enforcement is so concerned about Sen. Leahy's bill.

10:13:54

FREDERICKSENWell, you know, that's a great question. I was doing my homework getting ready for today, and part of that was trying to call my colleagues who are in -- at the Department of Justice or recently left. And what was remarkable to me was I did not hear one single objection to changing the law the way Sen. Leahy is proposing, to doing away with this anachronistic six-month distinction which existed in 1986 when cellphones weighed 15 pounds, you know, and we had no Internet.

10:14:29

FREDERICKSENI did not hear anyone oppose that who's at DOJ or recently left. And I suspect the other remarkable thing is that I have yet to see DOJ weigh in formally, opposing this or clarifying this, just the contrary. So I suspect that law enforcement will not oppose this change, this fix to the statute. But what they will look for is to ensure that there is not too much restriction put on their bill otherwise to conduct their investigation.

10:15:03

10:15:10

COLEWell, I think there are certainly things that this bill doesn't address that are of -- I think of serious concern if we want to protect privacy in the digital age. One issue that Sen. Leahy has chosen not to address, but I think does need to be addressed, is the issue of getting people's cellphone location data, should the government be able, you know, every time you walk around with your cellphone, it is transmitting to the phone company where you are, and therefore with whom you're walking, what offices you're visiting, where you're sleeping, et cetera, et cetera.

10:15:47

COLEAnd that information, the Supreme Court has said, is not protected by the Constitution. So the only protection it gets is by statute. And right now, that kind of information by statute does not -- the government does not have to demonstrate probable cause to get that information. And under the Constitution, it doesn't need to get -- have probable cause to get that information, which means they can get it very, very broadly simply by writing a letter, something called an administrative subpoena.

10:16:15

COLEIt doesn't go before a judge. It doesn't have to show any basis for probable cause. And that's of, you know, that's of serious concern because as the Supreme Court held last year in the case of evolving GPS monitoring, you can learn an incredible amount about somebody simply by putting together a kind of 24/7 data stream of where they are, who they're hanging out, what businesses and homes they visit and the like.

10:16:45

REHMMichelle, when Sen. Leahy, back in June, proposed an update to the Electronic Privacy Act that would extend privacy protection to third-party services, explain what that means and what happened then.

10:17:14

QUINNI don't know what happened then. I've been focused on the bill this last go around. I know that he had a role. Maybe my other panelists know.

10:17:27

REHMWell, what my understanding is -- and this goes back to your point, Scott -- was that in June and then in September, reaction from the Justice Department was not great.

10:17:44

QUINNMm hmm. Mm hmm.

10:17:45

REHMThat James Baker, the associate deputy attorney general, warned that requiring a warrant, search stored email could have an adverse impact on criminal investigations. You seem to be saying now that DOJ has somehow shifted its position.

10:18:12

FREDERICKSENWell, that's Scott Fredericksen reading tea leaves, and the first and foremost tea leaf is I don't see DOJ weighing in at this hearing so far or writing a letter, getting out in front of this and opposing it. And I think -- and again, this is my personal view -- it's because a six-month distinction to eliminate protection for content makes no sense whatsoever.

10:18:38

REHMScott Fredericksen, he is managing partner at Foley & Lardner, former federal prosecutor in the Independent Counsel. I do invite your calls. Stay with us.

10:20:05

REHMAnd we're back talking about the electronic privacy bill that is being discussed today in the Senate proposed by Sen. Leahy of Vermont. Michelle Quinn, what about Republicans on the Judiciary Committee, what are their objections, if any, to Sen. Leahy's bill?

10:20:34

QUINNWell, it's really interesting. I mean, the Republicans -- there's eight of them, and there's 10 Democrats. So if it goes on party lines, this amendment can pass the Senate judiciary. The problem is that there is only -- there's a couple of problems. One is that there is only, you know, few weeks left of the 112th Congress. The -- that isn't a deal breaker. This could just help tee up the issue for next year.

10:21:02

QUINNThe other issue is, you know, where are the Republicans? Because this may pass the Senate Judiciary. It may pass the Senate, but, you know, the Republicans have the House. So what these Republicans on the Senate Judiciary think and feel about this amendment could reflect what happens to the bill's -- the amendment's chances of success. Sen. Leahy apparently tweeted recently that he was in support because he's libertarian.

10:21:37

QUINNSen. Grassley of Iowa has a couple of amendments of his own that he liked to add that may reflect some law enforcement concerns that we were trying to get out this morning. One in particular would exempt some of the requirements in the Leahy amendment from investigations involving child pornography, child rape, violence against women so, you know, if the investigation is done in good faith.

10:22:12

QUINNAnother intriguing aspect of the Leahy amendment is that law enforcement is supposed to show or reveal to the subject of the warrant the warrant at some point. I don't know how that works for law enforcement, but, you know, you'd be interested in getting one of these if you're -- if the police or the law enforcement has access to your email. The Grassley amendment kind of waters that down a little bit, gives law enforcement more time before it has to show the warrant. So it seems like there's a lot of agreement even among the, you know, the powerful Republicans on this committee.

10:22:53

REHMDavid Cole, let's talk for a minute about the recent case involving CIA -- former CIA director, David Petraeus. How did the FBI and everybody else gain access to those emails? And did the way they did that trouble you?

10:23:21

COLEWell, I think the main lesson from the Petraeus affair is that if the CIA director can't keep what his intimate affairs, so to speak, secret, then none of us can, that our privacy is gone unless we do something about it. So in his instance, there was a complaint by the Tampa -- the woman in Tampa, that she had gotten some anonymous threats by email. That's what launched the investigation.

10:23:52

COLEMany of the emails that they looked at, I presume, were voluntarily given by her to the FBI. So there wasn't -- it's not an issue there, it's a -- when the government gets it by consent. But they did obtain access to other emails with respect to Paula Broadwell, Mr. Petraeus' mistress and biographer, and apparently they got a warrant for those. So, you know, that's -- if so, they established probable cause, and that's what, I think, all what can...

10:24:24

REHMProbable cause of what?

10:24:25

COLEOf what? Well, we don't know because we haven't seen the warrant. My -- the concern might have been the sharing of classified information. I don't know. I don't know what it was, but they went through the steps. I think -- so the -- I don't think the question -- what the Petraeus scandal raises is, did the FBI abused the law? I think the question it raises is, is the law sufficiently protective of all of our privacy now that everything you do is recorded?

10:24:58

COLEYou know, you're -- I mean, it used to be if you sat in your house and thought about something or read something or spoke to somebody, it wasn't recorded for all time. Now, because you do it at a keyboard, your every thought, your every desire, everything you read...

10:25:14

REHMThat you put on there.

10:25:15

COLE...that you put on there is suddenly a -- there's a permanent record of it. And most of it is not protected by the Constitution because the Supreme Court 20 or so years ago said, when you share information with a third party, you give up your expectation of privacy with respect to that, vis-à-vis, the government getting it from that third party. And they held that first in the case involving garbage.

10:25:44

COLEIf you put your garbage out, the government can go to the garbage collector and say, hey, bring the garbage to us so we can look at it. And the court said, well, you gave it to the garbage man. He could look at it. But in the modern age, I mean, there's -- one can criticize that decision on its own. But in the modern age, you can't do anything without sharing information with a third party.

10:26:03

COLEEvery time you make a purchase, every time you surf the Internet, every time you send an email, you are sharing information with a third party. And if, therefore, none of that information is protected by the Constitution, what's left of the Fourth Amendment privacy?

10:26:20

REHMAnd, Scott, do you believe the FBI went too far in the Petraeus case?

10:26:29

FREDERICKSENWell, the Petraeus case is like a great spy thriller you pick up over the holidays, and I'm still -- I'm anxious to get to the end of it 'cause we haven't seen it. It's fascinating. I have a question about how it started. When Paula Kelley (sic) goes to an agent, says, gee, I'm being kind of cyberstalked, this happens, you know...

10:26:50

REHMJill Kelley.

10:26:51

FREDERICKSENJill Kelley. I'm sorry.

10:26:52

REHMJill Kelley.

10:26:52

FREDERICKSENJill Kelley, thank you, the socialite in Tampa. You know, this happens every day, every city so many times. I guess I have a question of, you know, was this a friend, an FBI agent? Is that why this got going? I question why it started that way. But once it started, it seems like the FBI probably followed this according to the book, got a search warrant for Broadwell's email content or Gmail, I should say, and probably got it because they knew, at this point, Petraeus was involved, the CIA director.

10:27:24

FREDERICKSENThat's probably going to be enough probable cause, with a few more facts, to get a search warrant there. So -- and once they got involved and saw the emails, apparently, they did see very suspicious emails that led them to think initially there might be some kind of blackmail payoff, but it turned out to be, you know, run-of-a-mill affair. That shouldn't have led to the resignation of Petraeus, but that's our society.

10:27:48

FREDERICKSENNow, it doesn't seem like the FBI did anything wrong. For instance, what if, instead, they came across the email in that investigation and said, you know, there's this guy named Bernie Madoff, who's talking about this Ponzi scheme he can make billions on using the Internet. I mean, I think we'd want them to follow that up. But it was one of those circumstances. Let me just echo one other thing what my colleague here mentioned.

10:28:19

FREDERICKSENWe have to keep in mind that, you know, is our greatest threat just from government review and breaching the Fourth Amendment will always be there, I think, to protect that. But I think we have to understand now the biggest threat to our own privacy lies in the hands of private companies over which the government doesn't have control right now.

10:28:42

FREDERICKSENAnd I have to wonder whether the Congress shouldn't be addressing that, not just fixing this, the ECPA, as they should now, but addressing, overall, the threat to privacy that was just laid out here by my colleague in the hands of private companies that know everything about us now.

10:29:02

REHMDo you agree, David?

10:29:03

COLEI think that's right. And one place to look is Europe. In Europe, they have a very -- a much different and much more capacious understanding of what privacy requires and the -- they protect computer data, any personal data. They protect it from both private companies using it, exchanging it, recording it and the public. We barely protect from...

10:29:32

REHMWhy are they so far ahead of us?

10:29:35

COLEWell, I mean, people speculate that the lesson of World War II was that the Nazis were able to use data about, you know, recorded data about the population to identify Jews and single them out and exterminate them. And so there's much greater understanding of the real risks that storing private information for inappropriate uses or for too long so that it becomes accessible creates.

10:30:07

COLEAnd here we didn't have that experience, and so we have less concern with respect to private entities. But I think Scott's right. The concern with respect to privacy goes both to the private companies and to the government. I think it's greater with the government, I should say, though, because Google can't lock us up. Google can't bring a prosecution against us and threaten us with being in jail. The United States government can. The state governments can. And so I think there's a special concern about keeping this information from the government.

10:30:37

REHMMichelle Quinn, do you think that Americans have been sufficiently alerted and indeed warned from the Petraeus cases with respect to email and phone messages?

10:30:56

QUINNIt's a great question. It's -- I agree with the others on the show that this is such a great example, like a spy novel. And if the key spy can't keep this information from, you know, pesky government hands, then what hope do the rest of us have? I think we need to know more. It would really be helpful to know more just to help kind of understand, you know, where are the lines and boundaries in our society.

10:31:26

QUINNOne thing that I found interesting -- so the Tampa socialite gets these threatening emails. How do they figure out who sent them? They're sent from maybe a Gmail account, no name. You know, the name is false or something like that. It doesn't say who it is. So how do they figure it out? Well, your computer -- one thing I learned about during this, you know, covering this story is that your computer and where you are sitting kind of issues information with that email.

10:31:58

QUINNSo Paula Broadwell may have been sitting at a Starbucks near a hotel, not at her home Wi-Fi account. And maybe that was a good thing to do, but then maybe she immediately accessed her own account, and thus the investigators were able to sort of help piece together, oh, well, she was at that Starbucks at this time, the same time these, you know, weirdo emails were being sent. So I think that people take steps.

10:32:28

QUINNShe, you know, apparently she and Petraeus took steps. They, you know, corresponded through a draft email account. They would keep their emails in draft form. Again, once a government can get a warrant for those if -- or even a subpoena, that didn't really -- that wasn't much protection. And since this happened, there's been a lot of stories about what you can really do to protect yourself.

10:32:52

REHMHmm. Michelle Quinn. She's technology correspondent for Politico. And you're listening to "The Diane Rehm Show." What about cellphone data? We've been talking mostly about email, but what about cellphone data? Can that be as easily accessed, and is it covered in the Leahy bill?

10:33:21

COLEThe cellphone location data is not covered in the Leahy bill. I think text messages may be covered because they're like email. They're a form of electronically communicated content. And so text messages may be covered, but location data is sort of where it's at. They're -- this is a very, very useful tool because the government can pinpoint where someone is. It can, you know, defeat an alibi in two seconds.

10:33:48

COLEIt can identify suspects' whereabouts and -- but it also could be abused. And the government has argued consistently that on the theory of the garbage man case, when you buy your cellphone, you voluntarily transmit to the phone company your whereabouts 24/7 for the rest of time, and therefore the government should be able to get it without having to make any showing as to your being involved in any kind of criminal activity.

10:34:20

COLEI think -- and some courts have held -- that, in fact, that kind of data can disclose a lot of private information, could not have been obtained at the time the Fourth Amendment was adopted without extraordinarily intrusive and invasive and expensive measures. And therefore it ought to be protected by the Constitution, meaning that just as with respect to documents in your home or documents in your backpack, the government, if it wants to get this information, should have to show they have probable cause to believe you've engaged in criminal activity.

10:34:51

REHMScott.

10:34:52

FREDERICKSENWell -- and I think now we get to a -- the real issue here, and I think this is where law enforcement will fight to maintain its ability to obtain the kind of non-content identifying information, location and such that they use for investigation. So when the question was, just now, how did they get that information on Paula Broadwell, I suspect the agent was able to do it by administrative subpoena or subpoena to get enough information to -- for them to get probable cause, eventually, for -- to get to the Gmail account.

10:35:28

FREDERICKSENThere's a great story in this morning's New York Times about what the New York Police Department has done. Whenever they recover stolen or when a cellphone is stolen, they immediately subpoena the provider and get their records and put it together, hyperlink it all together, and they have a store of information on that. That was just this morning revealed by The New York Times. That tells you how valuable this information is.

10:35:59

FREDERICKSENNow, in defense of law enforcement, you know, most investigations don't start out with probable cause. That would be the easy world. Just the opposite. Most times it starts out with an agent hears something, learns something. They can't get probable cause with that, but they will oftentimes go to a prosecutor.

10:36:16

FREDERICKSENThe prosecutor says, OK, I think that warrants a subpoena and sends out a subpoena or an administrative subpoena and get these kinds of identifying information when we're talking about a crime in cyberspace because you typically don't have the witnesses and the forensic evidence kind of lying around on the street there. And then they use that to build to see if there is a potential crime and then to get a search warrant.

10:36:39

FREDERICKSENBut I think this is where the rubber meets the road and where law enforcement will push back to maintain its right to get this non-content identifying information.

10:36:48

REHMYou're going to be happy with that, David?

10:36:50

COLENo. And I think I would draw -- first of all, I'd say with respect to the story in the Times this morning, if the police get a report that a cellphone has been stolen, well, now they have probable cause with respect to the data, with respect to that cellphone. And so they can get a warrant, or they can, under the exigent circumstances exception, which allows you to do things without a warrant when it's an emergency, they could do that.

10:37:13

COLESo that wouldn't be a problem where there are probable causes for crime in play. The -- and I would draw a distinction between identity and location, and I'll come back to that after the break.

10:37:25

REHMAll right. David Cole, he is professor at Georgetown University School of Law, author of "The Torture Memos: Rationalizing the Unthinkable." Short break and right back.

10:40:05

REHMAnd we're back. Talking about electronic privacy. David Cole, you were making a point just before the break.

10:40:15

COLERight. I think Scott talked about identifying information and location information sort of in one breath. I think they're really quite separate. And identifying location -- identifying information is whose account was this? And, you know, I'm not sure, there's a concern about anonymity there, but that's about it. Other than learning whose account it is, if you don't have access to the content, you don't learn much about their private life.

10:40:41

COLELocation data is totally different, seems to me. If you can follow somebody 24/7 for a month, a year, you will learn virtually everything about that person's interests, associations, desires, needs, et cetera, and that's private information. So I think we ought to be treating location data the way we treat content of phone calls the way Sen. Leahy wants to treat content of emails and the like.

10:41:08

REHMAnd here's a tweet from Jara, (sp?) who says, "Is the whole idea of privacy over? Your example of the general is telling everything is recorded true and in public." How do you respond to that, Michelle Quinn?

10:41:30

QUINNI think that I have to agree with the panelists that we have to assume that we are -- that everything is being recorded, except maybe a private conversation in a street corner. I can imagine that that's still sacrosanct unless there's a video camera.

10:41:48

REHMExcept if your cellphone is in your pocket.

10:41:51

COLEWell, then they know who you're talking to.

10:41:53

REHMExactly.

10:41:53

COLEThey don't know what you're saying necessarily.

10:41:55

REHMHow do they know who you're talking to?

10:41:58

COLEBecause your cellphone is sending out messages to the cellphone tower. And if it's a smartphone, their GPS location identifies...

10:42:05

REHMBut that tells where you are.

10:42:06

COLEIt tells exactly where you are, and it tells -- and if the other has a smartphone -- I have a friend who works for the government who leaves his smartphone at home when he goes to dinner parties 'cause he doesn't think anyone should know who he's having dinner with.

10:42:19

REHMHow fascinating.

10:42:20

FREDERICKSENRight, right. And I travel to China regularly, and, I tell you, that is a completely different world. There, you really understand the idea of lack of privacy. Privacy is not over here. But the world has changed so fast. I mean, look, we have this dinosaur of a law governing this right now. There needs to be a complete revamping. And not only do we have to ensure the government doesn't intrude, but more than ever, there's no controls over the private providers and what they do with this information that they say is theirs.

10:42:53

REHMAll right.

10:42:54

FREDERICKSENSo we need a complete revamping.

10:42:55

REHMGo ahead.

10:42:57

QUINNAll right. I just think that the, you know, definitely, we're so fortunate, really, to have the Google transparency report because at least Google gives, you know, we're not China, but we really don't know what's going on unless there are these weird incidents like Gen. Petraeus or Google's transparency report where you get to see a little window into what's going on. And that really shows the U.S. out front in terms of asking Google for information about its users.

10:43:25

10:43:34

BOBGood morning. Yeah, I'm here.

10:43:35

REHMGo right ahead, sir.

10:43:37

BOBWell, when I called, the conversation hasn't gone into the area that I was interested in, but it since has, which is the investigative capabilities of the police. And I think -- and so it's been addressed, but it is really a fascinating thing. I'll give you something directly...

10:43:54

REHMBob, I'm afraid you must be on speakerphone. I'm having...

10:43:59

BOBOh, I'm sorry.

10:43:59

REHMGo ahead. OK.

10:44:01

BOBYeah, the investigative capabilities of the police like, for instance, you know, hit and run, and/or witnesses, you know, looking for witnesses to a crime. The police would be very interested in knowing who else was around that area at a certain time and who was at this location in cases of a hit and run. So I'm just kind of wondering where -- and I get the sense from your guests that that's in place now, that police can essentially go fishing for useful information.

10:44:33

COLEAbsolutely, because neither the Constitution as the Supreme Court has interpreted it nor statutes that Congress have passed set any significant restriction on the government getting location data from cellphones. I mean, it's relatively recent that this data was available, so it's understandable that the Supreme Court has not yet addressed it and that Congress has not adequately addressed either. But yeah, the government, at this point, is free to get that information.

10:45:05

QUINNI wanted to jump in here about something that we were talking about before, which is in California. The state legislature passed a -- or tried to pass a law requiring a warrant for any information about cellphone data that included location. But the governor vetoed it. And I just bring that up because I think that we're in a conversation as a society. We're not quite there to say what we need and, you know, that it's kind of going back and forth. I think there's still a law enforcement argument that a lot of people are sympathetic to.

10:45:42

REHMAll right. To Pittsburgh, Penn. Hi, John.

10:45:47

JOHNHi, Diane. How are you?

10:45:48

REHMGood. Thanks.

10:45:49

JOHNBig fan. I'm actually a technology professional, and this conversation definitely caught my ear. As someone who knows a lot about data and how it's engineered, I know that, often, to determine the nature of something electronically, you can't help but look at it. To determine what something is, you must open it and explore it. That's just the nature of the way, I'd like to say, we've designed data and information on this world.

10:46:14

JOHNSo I've seen issues like this come up in the past, and almost all the time, as Ms. Quinn stated, someone somewhere says under a certain circumstance, there would obviously be a waiver of such privacy requirements. My question is how is it that we prevent law enforcement and other industries from using that as sort of a guarantee to get into anything they want whenever they want to find something out?

10:46:38

JOHNAgain, as the nature of data is, you don't really know where it is until you look at it. You could say by theory that something that you wanted to know could indeed be of a nature that meets the requirements for a waiver and then go from there.

10:46:51

REHMScott.

10:46:52

FREDERICKSENWell, look, you know, law enforcement has always been governed by the Constitution, the Constitution and statutes and by judges who rule when they go beyond the bounds. The fact is that what law enforcement does today when they issue a subpoena to get information about location or identification, usage information and not content, metadata, they're not looking at content.

10:47:19

FREDERICKSENThey know that if they did and tried to use it, they'd never get away with it. They wouldn't -- you couldn't make a case with that. So what law enforcement tries to do is use to build their cases by getting this information, identification, location, users. And that -- that's probably what happened in the Petraeus case.

10:47:39

REHMTell me, David, do you think we now live in a world where the Fourth Amendment to the Constitution is outdated?

10:47:52

COLEWell, it's outdated unless the Supreme Court updates it essentially, and the court has, at various times, sought to do precisely that. So in the 1960s, it reversed prior decisions, which had said that, for example, wiretapping was not a search because in order to wiretap a phone, you don't have to go into somebody's house. And they said it's only a search if you have to actually invade somebody's property. In 1967, they said, no, that's wrong. The Fourth Amendment protects privacy, not places.

10:48:25

COLEThis -- you need to get a warrant to search a phone. Phones are of integral part of private communications today. So they caught up in 1967 to the phone. But the phone had been introduced, you know, decades earlier. And now they're trying to catch up to the modern technology world. So last term, they had this case involving the placement of a GPS monitor on somebody's car so that the -- and the police then used it to monitor where he went in public, only in public but 24/7 for a month.

10:48:59

COLEAnd the Supreme Court unanimously held that that was an invasion of his privacy, against the Obama administration's arguments that it invades no privacy whatsoever because all they were gathering was information in public. So the court in that case demonstrated some concern about not letting technology erode the protections of the Fourth Amendment.

10:49:22

COLEA few years back, they had a case about the use of a thermal imaging device, where the police went on the sidewalk outside somebody's house, used this thermal imaging device that detects heat, and they used it to determine that out of this house, there was an unusual amount of heat coming from one room, which suggested that they might be growing marijuana with, you know, with heat plants.

10:49:44

COLEAnd the court said that using that technology to get information from inside the house, even though you didn't actually enter the house, was an invasion of privacy. We're not going to let the technology erode the Fourth Amendment. That's what we need. We need a forward-thinking Fourth Amendment or at least, you know, a Fourth Amendment that keeps pace with technology and seeks to preserve for us the kind of privacy that was protected by the Fourth Amendment when it was enacted.

10:50:13

COLEYou know, when -- if the police wanted to find out what letters you'd written back in the day, they had to get a warrant. The fact that we now do it on Gmail instead of putting it in the mail shouldn't change our privacy. Privacy is only dead if we'd let it die.

10:50:27

REHMAll right. To Rome, N.Y. Dominic, you're on the air.

10:50:32

DOMINICYes. That's exactly my concern. If we have a Supreme Court that's rooted so much in the past and we have originalists consulting the 18th century dictionaries, where are we going either with technology or bioethics?

10:50:46

REHMScott.

10:50:47

FREDERICKSENWell, you know, I think one way to illustrate where we are in this -- Google has a cute little video on its site about how law trails technology. It's always been that way. What we're talking about is process. The law is far behind 'cause technology has leaped far ahead. That said, the Fourth Amendment is one of the most valued amendment. It's what makes us free. And I would never touch that.

10:51:15

FREDERICKSENBut what has to change has to be Congress has to enact laws that aren't based on technology that we laugh about now that people can't imagine. We didn't have Internet. There was no website. There was no cloud surfing. You know, a cellphone weighed 20 pounds. Congress has to keep up. They have to put aside differences and work together on that. And the law will keep up. It shouldn't be ahead, but it can keep up.

10:51:39

FREDERICKSENAnd second of all, I would just sound a very strong warning. Don't ignore that the equal threat to our privacy is from the private sector, those technology providers who possess this information, not just the government. We cannot take our eye out of the government. That's why the Fourth Amendment is there. But be aware that all the information we're talking about, the privacy that's gone away, that's in the hands of private companies.

10:52:06

REHMBut as David said earlier, private companies don't put us in jail. Google doesn't, on its own, take a look at our private life.

10:52:18

FREDERICKSENThe deprivation of liberty has always been the most serious threat to every individual. That's why we govern ourselves so closely in our Constitution with the rights that every individual has. There is no question. The government's ability to put someone in jail is the biggest threat. But, that said, our life is lived online now, work and family.

10:52:38

QUINNAnd I just want -- I would just chime in that at least the government...

10:52:42

REHMDavid.

10:52:43

QUINN...has been concerned about this -- 'cause what the FTC has looked into and fined Google and Facebook -- or at least Google -- I'm sorry, let me back up. The FTC, the Federal Trade Commission, has kind of hit Google and Facebook with consent decrees that require these companies that, of course, hold a lot of information, to report for 20 years about whether they're obeying -- what they -- their own privacy policies. And so the U.S., you know, regulators are interested in what private companies are doing with our data.

10:53:19

COLEWell, you know, I think one illustration of the -- of, you know, why we ought to be concerned is the story that was -- appeared in October about...

10:53:27

10:53:35

COLERight. In October, there was a story about the presidential campaigns, and both of the presidential campaigns had access to the most detailed information about voters' online behavior. And they said -- the reports said they knew what websites you searched, whether you were on religious websites or pornography websites or political websites, and they could then tailor their outreach based on that intimate detail.

10:54:04

COLEAnd that's obtained on a daily basis by cookies that, you know, are these computer virus, some of the viruses that are put into programs. So when you go to a website, it then sends something to your computer. And then it follows where you've gone from that website to the next website to the next website. And the campaigns found that it was very, very useful because they could develop a picture of every potential voter.

10:54:30

COLEThat -- to me, that's scary, that that's -- that the private sector is free to do that, that the government is now -- is free to get that information from the private sector. None of that is content information. It's just addresses of where you've gone. Yet it tells tremendous amount about who you are. And it's, again, information that I think we have an interest in preserving confidentiality.

10:54:49

REHMFinal caller from Orlando, Fla. Hi, Ricky.

10:54:55

RICKYOh, hi. Yeah. I just wanted to call and get the opinion of your panel about Sen. Rand Paul's manifesto he released over the summer called the Technology Revolution, which are basically just plays out an argument for keeping government completely out of regulating anything online, and it just leaves it to the private sector to shape that really long-lined space. I just wanted to see what your panel's opinion was. And I'll take my answer off the air.

10:55:18

REHMAll right. David, do you want to comment?

10:55:21

COLEWell, I'm not against government altogether. I think there is a role for regulation, but I think it just has to be sensitive to privacy concerns and liberty concerns.

10:55:31

REHMScott.

10:55:32

FREDERICKSENA free and open Internet was created here in the United States, and we have to maintain it. But that means we have to watch government and -- but we have -- increasingly, we have to watch the private sector. You and I, every day, when we sign on to get our email, we go to battle, don't we, with the spammers and fishers and the junk mail and people trying to get our identity.

10:55:53

FREDERICKSENIt happens every day in our lives. That's not coming from the government. So, yes, regulate the government. But the government has to be allowed under regulation to investigate and fight those people who want to destroy our free and open Internet.

10:56:07

REHMYou know, the question I have is if so many people, including the government, knows so much about us -- what we do, where we go, how we behave -- where is that line of privacy? Does it really continue to exist, David?

10:56:30

COLEWell, again, I think it only exists if we insist on it existing. And I think this is an area where we all have an interest in preserving privacy. We also all have an interest in making sure the government can catch the bad guys, but there is a balance to be struck. And I think because we all have an interest in maintaining this privacy, it's something that Congress ought to be able to if it weren't as dysfunctional and as divided on partisan line, ought to be able to address in a rational way.

10:56:56

REHMDavid Cole...

10:56:56

QUINNI just want to -- Some people call it the yuck factor.

10:56:58

REHM...Scott Fredericksen, Michelle Quinn, thank you all so much.

10:57:03

COLEThank you.

10:57:03

FREDERICKSENThank you, Diane. A pleasure.

10:57:04

REHMAnd thanks for listening, all. I'm Diane Rehm.

10:57:09

ANNOUNCER"The Diane Rehm Show" is produced by Sandra Pinkard, Nancy Robertson, Denise Couture, Susan Nabors, Rebecca Kaufman, Lisa Dunn and Jill Colgan. The engineer is Erin Stamper. Natalie Yuravlivker answers the phones. Visit drshow.org for audio archives, transcripts, podcasts and CD sales. Call 202-885-1200 for more information. Our email address is drshow@wamu.org, and we're on Facebook and Twitter. This program comes to you from American University in Washington, D.C. This is NPR.

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